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Synthesize Division Interagency Real Estate Agreements and Identify Practices for Improved Interagency Support

I. Introduction

This section introduces the Federal Interagency Land Transfer process. It also provides an overview of the research project conducted to analyze and synthesize the existing Interagency real estate process and Interagency Agreements and to identify best practices for improved Interagency support and coordination.

Project Background

When highways are required to cross lands owned by the United States and managed by any of several Federal Land Resource Agencies, a highway easement can be granted to convey the required rights necessary to build and maintain the road under authority in Title 23 USC Section 317. The process to convey an interest in land held by the Federal government is referred to as a Public Land Transfer or Federal Land Transfer even though full fee simple title to the land to be used by the highway is rarely conveyed.

FHWA, working under provisions contained in 23 CFR 710.601 and the authority in 23 USC 317, assists states in obtaining land interests necessary to build roads on the Federal-Aid system. This process is optional because states can deal directly with most of the Federal Agencies that manage lands held by the United States government. Appendix A contains excerpts from the relevant sections of the United States Code (USC) and the Code of Federal Regulations (CFR).

Other roads through Federal Lands are also authorized by Title 23 USC and are defined in Section 101 with specific funding authority provided in Chapter 2 – Other Highways, Section 204, 205 and 214 (please refer to Appendix B). The FHWA Federal Lands Highway Divisions assist the various Federal resource Agencies in advancing requests for Federal Land Transfers for those roads off the Federal-Aid system.

The steps required to process a Federal Land Transfer are the same whether road improvements originate as part of a planning process within a state department of transportation to improve a road on the Federal-Aid system or the planning process originates within a Federal Agency to improve a Federal Lands Highway. The sequence of events and the documents required are the same. The only variable is the degree of coordination necessary and the governmental entities involved in the process. Project planning, environmental assessment, funding, and identification of appropriate stipulations and conditions to be made a part of the easement are required stages for completing a Federal Land Transfer. The lead Agency in the development process for each stage is dependent on the road system and on any Interagency Agreements or MOUs that may be in place to define Agency roles and responsibilities.

The procedures required to successfully complete a Federal Land Transfer require good communications between the project sponsor, the Federal Land manager, the contractor, and the governmental entity that will be responsible for maintenance of the completed road. This study, using interviews and facilitated workshops with field practitioners, sought insight into ways to improve the required communications so that the process could be streamlined and successful practices identified to lessen the staffing and other resource requirements needed to advance projects over Federal Lands.

Overview of Interagency Real Estate Transfer Process

The development of highway improvements is based on a planning process that identifies critical needs and sets priorities. The process requires public involvement and environmental analysis to determine if mitigation measures are needed. Land interests required for the road must be secured with sufficient rights to build and maintain the facility. Throughout the planning process, state departments of transportation use various approaches to encourage citizen and owner involvement. When dealing with governmental Agencies, these early involvement efforts take many forms but usually involve distribution of notices.

When land interests are required over lands owned by the United States Federal government, the first step is to identify the Agency involved. In most instances, this is obvious based on location within a designated forest or refuge, but it is not always easy to identify the governmental entity that has control over the property. When land is owned by a Federal Agency, the deed shows the land as being owned by the United States of America. Therefore, the first step is to track down the appropriate Agency.

Once the Agency is identified, the notification process requires being able to provide information to and to work with the appropriate office within the Agency in which any eventual land transfer will be processed and approved. In today’s Federal government, with most Agencies decentralized and delegation authority varied, the ability to find the appropriate notification point can be a challenge, especially within those states having a low number of Federal Land Transfers. Even in those states with a recurring need for Federal Land Transfers, working with local offices can be problematic as it is usually personnel at the lower staff levels who assist with the transfer; it is at these levels where the highest incidence of personnel turnover occurs. This makes continuity over the long-term highway development process harder to maintain.

MOUs, both national and within states or across regions, provide some guidance and consistency. However, these MOUs are only valuable where a sufficient volume of work exists for staff to become familiar with the terms and methodology. Where only an occasional transfer is required, it may take more time to find the MOU document than to use the general regulatory provisions in 23 CFR 710. With the subtle changes that occur within governmental Agencies regarding missions, programmatic emphasis, and priorities, the static nature of MOUs requires consistent effort to ensure that they remain up to date.

Agency guidance complements an MOU by providing more detailed information on the document preparation and content needed to convey the required property interests. The actual transfer of rights necessary to use real property is a paper exercise that requires a commitment of resources to make sure the terms, stipulations, and conditions necessary are part of any Letter of Consent or easement conveyance. The land survey and preparation of the property description establishing the area of conveyance can be accomplished either before or after the road has been constructed.

A Letter of Consent is often used for new location and upgrade projects to grant permission to enter on Federal Lands. The scope of the letter can be broad or specific but usually includes the required stipulations and conditions identified by the land manager as necessary to provide protections needed to ensure that adverse impacts on resources are minimized or avoided. Many of these items may then carry over into the highway easement deed, which usually provides a recipient (the state or a local road district) with longer-term responsibilities for maintaining the road.

The highway easement deed will contain a description of the road "as built" based on the survey linked to a property monument and containing any required stipulations and conditions to identify the limitations inherent in the land transfer. This document is then recorded in the local courthouse.

The need for early coordination among Agencies requires that notices regarding project plans be delivered to the appropriate parties in each Agency as early in the process as possible. The negotiation process for a right of entry or a Letter of Consent requires that all parties involved in the transaction understand and have empathy for the other’s mission. Likewise, follow-up after the project is completed is also essential to ensure that all the required paperwork has been completed and the highway easement properly recorded.

Problem Statement

Federal Land Transfers are typically complex, multi-Agency transactions. In addition, except for some parts of the western United States, Federal Land Transfers are rare. Thus, it is possible that realty staffs members in a state or Federal Agency will work on only one or two of these transfers over the course of their careers, thus limiting the extent to which any staff member has the opportunity to develop significant expertise in this area.

The low-volume, highly complex nature of the Federal Land Transfer process, along with the relative inexperience of many staff in processing these requests, presents a number of challenges for the various partner Agencies. During discussions at the Interagency meetings and at other forums over the last several years, the potential to streamline the Interagency Agreement process for Federal Land Transfers and to better leverage best practices in this area nationally has been identified by representatives from several Agencies as a potential opportunity area. It is believed that there are opportunities nationally to simplify, streamline, and better standardize the Federal Land Transfer process; adopt best practices that may be working well in one part of the country on a wider scale; and assess opportunities for applying greater use of technology to support the process.

Some of the issues with the Federal Land Transfer process raised by representatives of the various Agencies included the following:

In response to these potential opportunities to improve the Federal Land Transfer process, FHWA awarded a task order contract to Dye Management Group, Inc. in September 2004 to analyze the Interagency Agreement process nationally, identify best practices, and develop recommendations for improving the process on a national basis. FHWA, USFWS, USFS, BLM, BOR, NPS, and BIA actively participated in the project effort and a number of state departments of transportation were invited to participate in the various workshops held nationally.

Project Scope and Objectives

The purpose of this task order was to identify and evaluate the extent and success of the existing Interagency Agreements related to real property as well as the overall method and quality of communication regarding real property transfers between the different Federal Agencies. In addition, this project sought to facilitate both intra- and inter-Agency communication and cooperation to streamline the Federal Agency’s approval process for providing land needed for transportation projects.

This task order addresses FHWA’s Vital Few Goal for Environmental Stewardship and Streamlining and also Executive Order 13274 which fosters Interagency cooperation and collaboration in the decision-making process. In the end, the ultimate goal of this study will be to develop recommendations for improvement to the Federal Land Transfer process that facilitates cooperation between Agencies while maintaining the appropriate checks and balances in providing the land necessary to meet the transportation needs of the nation while protecting all of its resources.

To the extent possible, the intent for this task order is to leverage FHWA's Office of Project Development and Environmental Review's (HEPE) success in using collaborative problem solving and interest-based negotiation methods between Agencies to streamline their environmental review and approval process. The format of the workshops under this task order, for example, was modeled after the "Interagency Collaborative Problem Solving Workshops" that have been successfully utilized by HEPE.

The remaining sections of this report are as follows:

Updated: 09/05/2014
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